Moore v. KUKA Welding Systems & Robot Corp., 97-1734

Citation171 F.3d 1073
Decision Date26 March 1999
Docket NumberNo. 97-1734,97-1734
Parties79 Fair Empl.Prac.Cas. (BNA) 795, 75 Empl. Prac. Dec. P 45,809 Gerald MOORE, Plaintiff-Appellee, v. KUKA WELDING SYSTEMS & Robot Corporation and Expert Automation Inc., d/b/a Expert KUKA, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

John C. Cashen (argued and briefed), Bodman, Longley & Dahling, LLP, Troy, MI, for Defendants-Appellants.

Robert Van Cleef (argued and briefed), Southfield, MI, for Plaintiff-Appellee.

Before: MERRITT, SILER, AND GILMAN, Circuit Judges.

MERRITT, Circuit Judge.

Defendants KUKA Welding Systems + Robot Corporation and Expert Automation, Inc. appeal from the district court's entry of judgment against them after a jury verdict in favor of plaintiff Gerald Moore in his Title VII claims alleging hostile work environment, constructive discharge and retaliation. The jury awarded plaintiff both compensatory and punitive damages. Specifically, defendants appeal the denial of their motion for judgment as a matter of law at the close of plaintiff's case, the denial of their motion for a new trial and the award of damages, as well as an evidentiary hearsay question. This is a close case, but our review of the record leads us to conclude that there is no valid basis to overturn the jury's verdict.

I.

Plaintiff Gerald Moore, an African American, worked as a friction welder for defendants KUKA Welding Systems + Robot Corporation and Expert Automation, Inc. from September 1993 to April 1996, when he quit his job. He had previously worked for Thompson Welding, beginning in 1991, but went to work for KUKA when KUKA bought Thompson Welding in September 1993. When KUKA took over Thompson Welding in September 1993, it paid plaintiff $10.00 per hour, which was considered by KUKA to be "in line with the rest of the guys" on the shop floor and was an increase of $1.00/hour over his pay at Thompson Welding.

Plaintiff was the only black on the shop floor among 15-20 employees. Another black man was an engineer at the company, but he did not work on the floor and there was a black janitor named Melvin Gibson, who testified for plaintiff at trial. Tom McCauley, who is white, was plaintiff's supervisor at KUKA from September 1993 until shortly before plaintiff left in April 1996.

In March 1994, about six months after plaintiff started with KUKA, he was asked to train a new employee, Jeff Bambard, who is white. Bambard was hired as a "machine builder," a job considered more skilled than plaintiff's job as a "friction welder." In September 1994, about six months after Bambard arrived, McCauley, the supervisor, told plaintiff that Bambard was the "leader" of the production department. There was conflicting testimony at trial about the nature of the "leader" position, but "leaders" apparently supervise other employees, although they are not formally within the management structure. Plaintiff was upset that a person whom he had trained had been made a "leader" before him.

It is undisputed from the record that plaintiff was subject to numerous racial slurs and jokes on the job and that, at least to some extent, the behavior was tolerated by the company. In June 1994, a fellow employee, Dick Lance, who is white, yelled out to plaintiff "Hey nigger, hey nigger." Lance said this in the presence of McCauley, the supervisor, who said nothing and had a "smirk" on his face and was shaking his head, according to plaintiff. Plaintiff testified that he felt "badly" about the remark and expected his supervisor to do or say something, but when McCauley did nothing, plaintiff went back to work.

In December 1994, someone wrote "kill all niggers" on the shop's bathroom wall. It was never determined who wrote it. Alan Marsee, a coworker of plaintiff's, saw it, cleaned it off the wall and reported it to McCauley. Marsee testified that upon telling McCauley about the slur, McCauley said "Gerald Moore [plaintiff] probably did it." Plaintiff was not at work that day, but heard about both the writing and McCauley's response from Alan Marsee the next day. In light of the incident, McCauley reminded the employees about the company's anti-harassment policy at the next shop floor meeting.

Plaintiff also considered it an act of racial hostility and said he was treated like a "servant" when he was asked by his supervisor to drive a fellow employee, who was white, in his car. Plaintiff testified that the supervisor told plaintiff to drive and the white man to sit in the back seat.

Plaintiff was also present when fellow employee Dick Lance told racial jokes using the word "nigger," which apparently occurred with some frequency. Lance testified that if plaintiff was present when he told a joke with a racial slur that he always asked plaintiff first if it was OK and plaintiff always said it was. In addition, supervisor McCauley admitted to using the word "nigger-rigging" when a job was poorly done, although he did not use the term in plaintiff's presence.

In September 1994, during plaintiff's first annual review with KUKA, plaintiff received the maximum raise for his position. Plaintiff did not see his actual evaluation, but it was satisfactory overall and noted several areas where plaintiff could improve. Plaintiff found out in November 1994 that Bambard, the person whom he had trained, was paid $15/hour, which was more than plaintiff's hourly wage. In December 1994, as a result of finding out about Bambard's rate of pay, plaintiff told McCauley that he would quit if he did not get a raise. McCauley arranged a meeting between himself, plaintiff and Bob Knoll, the plant manager. At the meeting plaintiff complained that he did not get paid as much as Bambard and expressed his concern that he was subject to "race words" on the job. When asked who used "race words," plaintiff refused to identify Dick Lance as the person who called him "nigger" earlier in the year because McCauley had been there and knew who it was and had taken no action. Plaintiff also testified that he was "afraid" to identify specific people because he was the only black on the floor and had no one to turn to if he complained about white employees. Plaintiff did not get the requested raise and over his Christmas vacation he looked for a new job but could not find one so he returned to KUKA.

The strongest testimony concerning racial discrimination came after plaintiff filed a race discrimination complaint with the EEOC in January 1995. Plaintiff testified that a couple of weeks after he filed the complaint, his supervisor and the other employees began to avoid him and would not talk to him. Plaintiff testified that this isolation began in January 1995 and continued until he quit in 1996. For example, plaintiff and others testified that McCauley told the employees to move their tool boxes from the back of the shop, where plaintiff was located, so they wouldn't talk to plaintiff. In addition, Alan Marsee and Jeff Bambard were removed from the friction welding department, leaving plaintiff as the only employee in that department. McCauley testified that this was due to a downturn in work in the friction welding area.

In April 1996, plaintiff quit his job at KUKA after he found a part-time job with Ford that paid $12.54/hr, more than he made at KUKA, but with the reduced hours he made substantially less money and had no benefits. Plaintiff testified that he hoped that the Ford job would become full-time, but as of the date of the briefs in this case plaintiff was still working part-time. Plaintiff says that he left KUKA because he was tired of the racism and isolation.

The EEOC eventually issued plaintiff a right-to-sue letter. Plaintiff's complaint states claims of hostile work environment and racial discrimination under 42 U.S.C. §§ 1981, 1981a, 42 U.S.C. § 2000e (Title VII of the Civil Rights Act of 1964) and Michigan's Elliot-Larsen Civil Rights Act, retaliation under 42 U.S.C. § 2000e-3 and the Elliot-Larsen Civil Rights Act and a claim for constructive discharge under Michigan law. After a six-day jury trial, the jury returned a verdict for plaintiff on his hostile work environment claim, his constructive discharge claim and his retaliation claim. The jury rejected plaintiff's racial discrimination claim based on disparate pay. The jury awarded damages of $20,000 for economic loss after plaintiff left KUKA, $50,000 for noneconomic damages and $70,000 for punitive damages, for a total of $140,000 in damages.

Defendants appealed the district court's failure to grant their motions for judgment as a matter of law, for a new trial and/or remittitur.

II.

Denial of judgment as a matter of law is reviewed de novo, examining whether there is sufficient evidence to support the jury's verdict when reviewed in the light most favorable to the prevailing party. Judgment as a matter of law is appropriate only when there is a complete absence of fact to support the verdict, so that no reasonable juror could have found for the nonmoving party. See, e.g., K & T Enterprises, Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.1996); Wehr v. Ryan's Family Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir.1995).

A. Hostile Work Environment

Defendants contend that the jury's finding of a hostile work environment is not supported by substantial evidence. To prove that he was subject to a hostile work environment in violation of Title VII, plaintiff must prove: (1) he belongs to a protected group; (2) he was subject to unwelcome harassment; (3) the harassment was based on race; (4) the harassment affected a term, condition, or privilege of employment and (5) defendant knew or should have known about the harassment and failed to take action. Harassment affects a "term, condition or privilege of employment" if it is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and creates an abusive working environment. See generally Harris v....

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